NEW INDIA INSURANCE Vs. O.S. VARGHESE

JUDGEMENT

(1.) Whether compensation is payable under Sec. 166 of the Motor Vehicles Act, 1988 ['MV Act' for brevity] for the loss suffered on account of death of an elephant in a motor accident, caused by the negligence of the driver of the lorry in which it was carried, is the question raised in this appeal by the Company which insured the offending vehicle. The question of law would be whether claims for compensation of damage to property, not of a third party, can be filed before a Tribunal constituted under Sec. 165 of the Motor Vehicles Act, 1988. The owner of the elephant was the claimant before the tribunal who is the 1st respondent in the appeal. The negligent driver and owner of the vehicle are the 2nd and 3rd respondents.

(2.) The Tribunal found negligence on the basis of the crime registered by the Forest Department against the driver, which cannot be faulted. The Tribunal held that the definition of 'goods' under the MV Act includes 'livestock' and, hence, an elephant comes within the definition of 'goods'. This Court has its own doubts as to whether an elephant will come under the definition of 'livestock', since it generally refers to farm animals reared for transport, carriage of goods or to generate a profit by sale of their products like milk, meat, wool etc:. 'Livestock' is generally distinguished from poultry and pets. An elephant, though essentially a wild animal, is often regarded as a pet, which also generate profit by its commercial use of hiring for pageants and earlier for moving timber, which now is prohibited. Be that as it may, there is no doubt that elephant kept in captivity for commercial use is the property of its owner and we are here concerned with compensation for, damage to or loss occasioned of property.

(3.) The Tribunal was of the opinion that the crucial question to be considered is the actual loss suffered by the claimant on account of the death of the elephant, the ownership of which is proved by Exhibit A2 certificate. The Tribunal misdirected itself insofar as the crucial question was as to whether the property/goods, being the elephant, carried in the vehicle and the damage or loss caused was covered by the insurance policy issued as against the vehicle in which the elephant was carried. There was also the larger question of whether the goods carried in the vehicle can be said to be goods belonging to a third party. It is admitted that the policy was an 'Act only policy' covered under Sec. 147 of the MV Act. Sec. 147 of the MV Act, as it now stands, covers the liability as against a third party including the owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. The proviso also enables the coverage in case of a goods vehicle; of the driver and an employee of the owner of the vehicle carried in the vehicle, often described as a cleaner. The proviso also makes it clear that there can be no coverage of any contractual liability.